Whatever you think about Justice Samuel Alito’s majority opinion in Dobbs v. Mississippi, one thing should be clear – no judge who signed that opinion should be called “conservative.” Radical perhaps. Or regressive. Even authoritarian. But if you want to use words precisely, as Supreme Court Justices should, don’t call them conservative.
We know what it means to be conservative. A conservative wants to preserve what we have, to maintain traditional values and institutions. To be conservative is to be cautious and moderate. People who call themselves “conservatives” distinguish themselves from people they call “liberals” using other tests — intellectual honesty, valuing reason over passion, and being grounded in reality. Conservatives value core rights and principles, especially liberty. Above all, conservatives defend an individual’s right to be free from government intrusion into their private lives.
Applying this test, the Alito court is far from conservative. Its view of rights is not conservative, but radical. Americans believe that human beings are endowed with unalienable rights by their Creator. The contrary view that rights originate with the government, which can grant or take them away as it pleases, is distinctly unamerican. It is not Thomas Jefferson; it’s King George. And apparently it is Samuel Alito. If you follow the reasoning in Dobbs, slavery would be permissible if we just repealed the Thirteenth Amendment.
Part of the confusion comes from the way we talk about rights. We sometimes talk as though rights were clearly-defined objects we can own — collectibles like stamps, beanie babies or baseball cards. As the term is used in the Constitution, a right is not a thing, but a shorthand way of describing a limit on the government’s ability to interfere with our God-given liberties. We have talked about those limits in various ways over the years. But whether we used the terms “natural rights”, “fundamental rights,” “privileges and immunities of citizens,” “liberty” or “substantive due process,” an essential core of what it meant to be an American was to believe that there are some things the government cannot do, no matter how procedurally correct the process by which it does them. The Bill of Rights is framed that way, and Roe v. Wade, for all its problems, is framed that way. The Alito Court adopts a radically different approach.
Roe asked: Are there any limits on the State’s ability to prevent a woman from terminating an unwanted pregnancy? Casey asked the same question and arrived at the same answer for different reasons. Dobbs ducks that difficult question and substitutes a simpler question, using the beanie baby understanding of rights: Does the Constitution afford a right to an abortion? Were Alito to deal seriously with the Roe question, he would have to consider whether a legislature is free to force a woman to give birth when:
1) There is a risk to the life of the mother;
2) The child will die in any case;
3) The child will die in any case, AND there is a risk to the life of the mother;
4) The child will survive birth, but will be severely deformed, and will experience severe pain over a brief life expectancy;
5) The pregnancy was the result of rape or incest.
If Alito thinks that legislatures won’t interfere with a choice to terminate a pregnancy under these circumstances, he has not been paying attention. But the Constitutional question, the question that Roe and Casey wrestle with honestly and Dobbs ducks, is not whether a legislature will pass and enforce such laws, but whether it can. In rejecting any limits on the State’s ability to interfere with personal autonomy — a rejection that would by the same logic apply to same-sex marriage, interracial marriage, the right to control the education of our children, and the right to travel — the Alito Court shows itself to be radical, not conservative.
This wholesale rejection of decades of jurisprudence is another reason why the Alito Court is radical. We tolerated Marbury v. Madison’s extra-constitutional grab at the power to declare laws unconstitutional in part because courts are supposed to be conservative, constrained by the doctrine of stare decisis. Stare decisis requires adherence to precedent. It requires that the Supreme Court try to preserve prior holdings to the extent possible, and to decide cases on the narrowest possible grounds, in order to minimize the impact on existing law. Casey provides an example of a conservative approach to a flawed decision. While recognizing that Roe’s rigid trimester approach was wrong, it preserved the basic principle that there are limits on the government’s ability to interfere with a woman’s decision to terminate a pregnancy and articulated a new approach to define those limits. Chief Justice Roberts’s concurring opinion in Dobbs is conservative in limiting the decision to the narrowest grounds possible to sustain Mississippi’s law. But the Alito majority embraces a radical alternative. If an opinion is flawed, ignore it, and substitute your own view of what the law should be, regardless of what the law has been.
The Alito Court’s approach to jurisprudence is not just radical, it is regressive. “Regressive,” the counterpoint to “progressive,” is not part of our everyday vocabulary, but should be. It avoids distorting the meaning of “conservative” when referring to people who don’t want to keep things as they are, but want to go back to the past. The originalist approach in Dobbs takes things a step further. Not only is what was done and thought in the past preferable; it is the only permissible way to navigate our legal present and future. Many, if not most of us, see the United States as striving for a more perfect union over the past 200 years, with increases in equality, prosperity, and personal liberty over time. Progress in voting rights and civil rights are quintessential examples. This progress involves not creation of new rights, but an increasing recognition of existing human rights, too long ignored or suppressed by the State. The Alito Court sees any such progress as illusory, and insists we govern ourselves by assumptions that existed when wealthy white men controlled everything. This is not conservative, but regressive.
The Alito Court’s embrace of originalism requires it to reject other values held dear by real conservatives – honesty, rationality, a cautious concern for consequences, and a humble recognition that no matter how strongly I believe something, I could be wrong. Underlying the Dobbs opinion is the view that Roe sparked the controversy over abortion and that overturning it will restore reasoned discussion. Alito misstates the impact of Roe and Casey on legislatures. Those decisions did not, as he claims, “end the political process” (look at the number of abortion statutes passed since Roe!); they only established limits within which legislatures could frame solutions. Alito justifies overturning Roe for its unworkability; in fact, opposition has been so strenuous precisely because Roe is not only workable, but working. Alito expressly states his disregard for the practical, human consequences of the Dobbs decision, essentially saying “it may be a problem, but it’s not my problem.” His pious pronouncement about returning the abortion issue to the citizens might be more believable if the Alito Court were not also facilitating efforts by legislatures to limit the power of citizens to control their government. In a triumph of judicial activism, Alito is giving a vocal minority nearly unlimited power to impose its views — which unsurprisingly align with his own views — on the majority of citizens.
Perhaps even more troubling than the Alito Court’s radical and regressive approach is the foundation it lays for an authoritarian future. Throughout the decision Alito refers, and defers, to the determination by the Mississippi legislature that a fetus is an “unborn human being.” Is the question of what qualifies as a human being one that the Constitution leaves to legislatures? Can a legislature determine that a zygote, an ovum, or for that matter a sperm cell, is an unborn human being? Can a legislature determine that one becomes a human being at some point after birth? Can a legislature find that a person without a defined gender is not really a person? Alito’s willingness to defer to a legislative power to define what constitutes a human being may be deeply rooted in our Constitution and our history, but is both radical and regressive by today’s standards. If you believe that legislatures should have tremendous control over the lives of individuals, defining their rights and determining their reality, while citizens should have little control over those legislatures, the word for your position is not “conservative,” but “authoritarian.”
You might ask: So what? Isn’t quibbling about the meaning of “conservative” just an academic exercise that won’t solve anything? My answer is an emphatic No. Words are not just the way we express our thoughts; words are how we think. We cannot tolerate distorted words without distorting our thinking. The problem of language distortion as a key tactic in achieving political paralysis and totalitarian takeovers has been described by thinkers as diverse as Timothy Snyder in On Tyranny and Pope Francis in Fratelli Tutti. Insisting on truth in speaking may not be the solution to our problems, but there can be no solution without it.
So, cheer the Dobbs decision or rail against it. Applaud the members of the Alito Court or despise them. Just don’t call them conservative.
